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Showing 21 to 40 of 1192 Records
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2021 (11) TMI 1173 - ITAT DELHI
TP Adjustment - MAM selection - CUP method or TNMM - HELD THAT:- We respectfully following case of Sumitomo Corporation India (P.) Ltd. [2018 (10) TMI 1785 - ITAT DELHI] has held as under:-hold that the CUP method cannot be applied in the case of the assessee for making an adjustment to the commission income of the assessee. The co- ordinate bench has also held that TNMM is the only method, which can be applied. Accordingly, the addition made on substantive basis adopting the CUP method is deleted. Accordingly, ground of the appeal are allowed.
Benchmarking of the commission income from associated enterprises other than Japan - AO/TPO is directed to not to adopt CUP method for computation of the arm’s-length price of the indent in business from non-Japan associated enterprises. Also is directed to adopt transactional net margin method adopting the berry ratio for computing the arm’s-length price of the indent in business income from known the associated enterprises and not to consider the free on-board value of goods imported/exported while working out the arm’s-length price from either operating income or operating expenditure of the assessee.
The assessee is directed to submit fresh set of comparables. TPO is directed to examine the same, he may reject or include fresh comparables. Thus, the fresh comparability analysis is required to be conducted.
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2021 (11) TMI 1172 - BOMBAY HIGH COURT
Principles of natural justice - applicant seeks time to approach the competent Court in the event of any FIR being registered against him.
HELD THAT:- There is observation of the trial Court that the application is not filed in respect of any specific crime or even in respect of any specific complaint. The application is filed only on the ground of apprehension that new complaint at the instance of Mr. Rajesh Jadhawar may be registered against the applicant. The learned trial Court was not inclined to entertain the application and accordingly rejected the same.
In the event the respondent finds it necessary to arrest the applicant in connection with any complaint pertaining to cognizable offence at the behest of Mr. Rajesh Jadhawar, Joint Registrar (Audit) with respect to specific report, audit report and special report dated 6th August, 2021 submitted by him to the office of Commissioner of Cooperation and Registrar of Co-operative Societies, Pune, the applicant be given 72 hours advance notice - application disposed off.
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2021 (11) TMI 1171 - MEGHALAYA HIGH COURT
Principles of natural justice - request for cross-examining the independent witnesses rejected - confiscation of seized goods - contraband item - HELD THAT:- The petitioner's request for cross-examining the independent witnesses was turned down by an order dated April 6, 2017 and, though the petitioner renewed the prayer to cross-examine the relevant witnesses in course of the personal hearing afforded by the Additional Commissioner of Customs, the decision to decline such opportunity was not challenged. Further, as the departmental and Tribunal orders indicate, the initial stand of the petitioner was not that the contraband was not recovered from the person of the petitioner.
Whatever may have been the basis for finding against the petitioner and the award of the nominal penalty, the petitioner will be entitled to make a prayer in accordance with law to examine any witness, whose statement may be used against the petitioner in course of the criminal proceedings. It will also be open to the petitioner to question the veracity of the statement attributed to the petitioner in course the petitioner's appearance on August 22, 2016.
The order impugned dated March 11, 2020 does not call for any interference since cogent grounds have been indicated therein upon relevant considerations having been taken into account - Petition disposed off.
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2021 (11) TMI 1170 - BOMBAY HIGH COURT
Seeking to restrain Defendant No.2 from acting upon and enforcing the anti-suit injunction order passed by the High Court of the Republic of Singapore - HELD THAT:- In view of the fact that the Interim Application taken out by the Plaintiff herein is required to be heard and particularly considering that the Interim Application seeks to restrain the Defendant No.2 from acting upon and enforcing the anti-suit injunction order which is now permanent anti-suit injunction, by the judgment dated 26th October, 2021, it would be appropriate to direct the Defendants to adjourn the meeting post the Interim Application being heard and decided.
The Interim Applications shall be placed along with the Interim Application No.1010 of 2021 on 8th December, 2021 at 2.30 p.m.
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2021 (11) TMI 1169 - MADRAS HIGH COURT
Jurisdiction of Respondent to issue SCN - Respondent submits that assessment will be completed by the jurisdictional Assessing Officer after furnishing the details called for recording the same this writ petition is disposed of by directing the respondent to pass a speaking order in show cause notice dated 09.08.2018 within a period of 90 days from the date of receipt of copy of this order - HELD THAT:- The request of the petitioner to the respondent to furnish the information based on which the demand has been quantified shall be furnished by the respondents within a period of 30 days from the date of receipt of copy of this order. It is made clear that the petitioner shall be given an opportunity to file additional reply within a period of 30 days thereafter. The Assessing Officer shall pass appropriate order within a period of 30 days thereafter in accordance with law after hearing the petitioner.
Petition disposed off.
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2021 (11) TMI 1168 - ITAT MUMBAI
Revision u/s 263 - assessee’s claim of Corporate Social Responsibility (CSR) expenses and claim of such expenditure u/s. 80G - HELD THAT:- With regard to section 80G deduction we observed that the Coordinate Bench of ITAT Bangalore Bench decided the issue of deduction u/s. 80G relating to donations which is part of Corporate Social Responsibility in the case of M/s. FNF India Pvt. Ltd., v. ACIT2021 (1) TMI 205 - ITAT BANGALORE]
As Bangalore Bench has remitted the issue to the Assessing Officer to verify the additions necessary to claim the deduction u/s. 80G of the Act with a clear direction to the Assessing Officer. In the given case the Assessing Officer himself allowed the deduction u/s. 80G of the Act as claimed by the assessee and the issue itself is a debatable issue and Assessing Officer has taken one of the possible view. Therefore, Ld.Pr.CIT cannot invoke provisions of section 263 of the Act in order to bring on record his possible view.
We observe from the record that on merit assessee has a valid point to claim the deduction u/s. 80G of the Act and we observe that nowhere assessee has claimed deduction u/s. 37 of the Act. It is clear that the restriction given in section 37 of the Act is restricted to CSR expenses but similar restrictions are not given in section 80G of the Act.
Other expenses to invoke the provisions of section 263 of the Act on bad debts and fish purchases - Assessee has submitted various ledgers relating to fish purchases and supplier’s confirmations before the Assessing Officer, all these informations clearly shows that Assessing Officer has verified these expenditures before allowing the same. From the record, we observed that AO has asked for certain informations on these expenditures and assessee has also submitted the informations with supporting documents, it can be inferred that the Assessing Officer has made certain enquiries and Ld. Pr.CIT can invoke the provisions of Explanation 2 to section 263 of the Act only when there is absolutely no verification is carried out by the Assessing Officer. This is not the case in the present impugned Assessment Order. Therefore, in our considered view the order passed by the Ld. Pr.CIT is not proper and accordingly set aside.
Appeal filed by the assessee is allowed.
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2021 (11) TMI 1167 - TELANGANA HIGH COURT
Jurisdiction of proper officer u/s 124 of CA - Appointment of Additional Director General, Directorate General of Revenue Intelligence, as the Commissioner of Customs - HELD THAT:- The issue involved in the present writ petition is identical to the issue in M/S. SRI KRISHNA JEWELLERS PVT. LTD., THROUGH ITS DIRECTOR SHIV CHARAN AGARWAL VERSUS UNION OF INDIA, THROUGH SECRETARY REVENUE; ADDITIONAL DIRECTOR GENERAL; PRINCIPAL COMMISSIONER OF CUSTOMS, HYDERABAD [2021 (11) TMI 1165 - TELANGANA HIGH COURT], wherein, today, this court, after hearing both the counsel, granted interim stay of the impugned show cause notice therein till the next date of hearing, by passing a reasoned order.
Till the next date, no consequential steps pursuant to the impugned show cause notice dated 26-06-2020 shall be taken by the respondents.
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2021 (11) TMI 1166 - ALLAHABAD HIGH COURT
Maintainability of petition - availability of alternative remedy - HELD THAT:- The writ jurisdiction should not be exercised to stifle the legitimate investigation.
It is well settled that the High Court should normally refrain from giving prima facie decision, in case, where the entire facts are incomplete and hazy, more so, when the evidence has not been collected and produced before the Court. The issues involved whether factual or legal are of magnitude and cannot be seen in their true perspective without sufficient material. In the present matter, we lack sufficient material. Therefore, the disputed facts cannot be examined under Article 226 of Constitution of India and once efficacious statutory remedy is available to the petitioner against the notice impugned, then discretionary jurisdiction under Article 226 of Constitution of India not exercised.
The writ petition fails and is dismissed on the ground of availability of statutory remedy.
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2021 (11) TMI 1165 - TELANGANA HIGH COURT
Jurisdiction of proper officer in terms of Section 124 of the Customs Act, 1962 - whether reliance can placed on the Notification No. 17/2002-Customs (N.T.) dated 07.03.2021 whereby and where-under the Board has appointed 'Additional Director General, Directorate General of Revenue Intelligence', as the Commissioner of Customs?
HELD THAT:- Prima facie, a view can be taken that Additional Director General, Directorate General of Revenue Intelligence' though an officer of the Central Government, is not under the jurisdiction of the Board. Therefore, Board could not have appointed such an officer, as an officer of Customs - Further, a view can be taken that such notification, in fact, is required to be issued by the Central Government and not by the Board.
In Canon India Private Limited [2021 (3) TMI 384 - SUPREME COURT], Supreme Court has held the notification to be invalid, having been issued by' an authority, which had no power to do so in purported exercise of powers under a section, which does not confer any such power.
Issue notice.
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2021 (11) TMI 1164 - RAJASTHAN HIGH COURT
Penalty u/s 271(1)(c) - judgment of the Tribunal would show that the penalty was deleted on the ground that quantum additions were deleted by the Tribunal and upheld by the High Court - HELD THAT:- In view of the position above, the question of penalty would not survive. As decided by Tribunal this issue is finally settled and decided in favour of the assessee by the Hon’ble High Court in assessee’s own case. Accordingly, in view of the fact that the addition itself was deleted by the Tribunal and then by the Hon’ble Jurisdictional High Court, then the penalty levied in respect of such disallowance is not sustainable - penalty levied under Section 271 (1) (c) against the disallowance of prior period expenditure is deleted.
No substantial of question of law arises.
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2021 (11) TMI 1163 - ITAT AHMEDABAD
Validity of assessment order passed u/s 153A - addition made on “on-money” for purchase of land - HELD THAT:- As in the case of Kabul Chawla [2015 (9) TMI 80 - DELHI HIGH COURT] in its concluding paragraph has observed that, on the date of the search, the assessments already stood completed and the returns in these years were accepted u/s 143(1) of the Act and these acceptance of returns processed u/s 143(1) of the Act was construed by the Hon’ble Delhi Court as completion of assessments and this acceptance of return, according to the Hon’ble Delhi High Court, could be tinkered with if some incriminating material was found at the premises of the assessee.
Thus no addition is sustainable in the assessments framed under Section 153A of the Income-Tax Act, in both assessment years under consideration, in both the hands of the assessees. Therefore, we allow all these appeals and delete the additions.
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2021 (11) TMI 1162 - MADRAS HIGH COURT
Maintainability of petition - availability of alternative remedy - Demand of differential amount of tax and penalty under Section 27 (3) (c) of the TNVAT Act, 2006 - stock transfer to its depot - partial production of Form F from the depot located outside the State - HELD THAT:- On perusal of the impugned order and the notice that preceded the issue of the impugned order. The petitioner has also filed form F for a value of Rs. 32,68,439/-. The correctness of those form F cannot be determined under Article 226 of the Constitution of India as the scope of interference under Article 226 is limited with wide powers. Considering the same, liberty is given to the petitioner to work out the alternate remedy, either under Section 51 of the TNVAT Act or under Section 84 of the TNVAT Act, within a period of 30 days from the date of receipt of a copy of this order. Registry is directed to return the original impugned order to the petitioner.
Petition disposed off.
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2021 (11) TMI 1161 - CESTAT DELHI
Levy of anti dumping duty - Period of limitation - Determination and investigation for anti-dumping margin - Exclusion of certain period/ due to COVID - rule 17 provides for a time period of one year to the designated authority to submit its final findings to the Central Government from the date of initiation of the investigation and thereafter, a period of three months time to the Central Government to take a decision on the recommendation made by the designated authority in the final findings.
Whether the period during which there was a stay order of the High Court in the writ petitions filed to challenge the final findings dated 01.09.2020 and seeking stay over issue of any notification by the Central Government can be excluded?
HELD THAT:- The issue as to whether the time period stipulated to perform an act gets extended because of an interim order of a Court was examined in detail by a Constitution Bench of the Supreme Court in Indore Development Authority [2020 (3) TMI 1310 - SUPREME COURT]. One of the many issues that was examined was whether the period covered by an interim order of a Court concerning land acquisition proceedings should be excluded for the purpose of applicability of section 24(2) of the ‘Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013’ . It is in this context that the Supreme Court observed in the present case, when we construe the provisions of Section 24, it clearly ousts the period spent during the interim stay of the court. Five years’ period is fixed for the purpose to take action, if they have not taken the action for 5 years or more, then there is lapse, not otherwise. Even if there had been a provision made with respect to the exclusion of time spent in the court proceedings with respect to interim stay due to court’s order, it could have been ex abundanti cautela.
A perusal of the aforesaid decision of the Supreme Court would indicate that even though section 24(2) of the 2013 Act does not provide for exclusion of any period during which the proceedings have been stayed by an order of the Court, but the Supreme Court held that the period covered by an interim order has still to be excluded for it cannot be the intendment of the 2013 Act to confer benefit on litigants seeking higher compensation contemplated under section 24 of the 2013 Act. This is for the reason that in such a situation, inaction cannot be attributed to the authorities and for the reason that when there is an interim order, the authorities cannot proceed and they will have to wait till the interim orders are vacated. The Supreme Court also observed that a litigant may be right or wrong in approaching the Court, but he cannot be permitted to take advantage of a situation created by him in obtaining an interim order.
It is, therefore, clear from the aforesaid Constitution Bench decision of the Supreme Court in Indore Development Authority that the time period during which the appellants had obtained a stay order from the High Court has to be excluded even if rule 18 does not specifically provide for such exclusion. It was not possible for the Central Government, during the period the interim order operated, to take a decision on the recommendation made by the designated authority. The Central Government had necessarily to wait till the writ petitions were decided and the appellant cannot be permitted to take advantage of a situation created by them.
The factual position brought about by the appellants leads to the inevitable conclusion that the period of three months, in the peculiar facts and circumstances of the case, should actually begin to run from 19.02.2021, when the last of the two representations was filed by Sadara Chemical before the Central Government, pursuant to the directions issued by the High Court, and if that be so then the notification issued by the Central Government on 05.04.2021 is clearly within the time limit of three months stipulated in rule 18 - Alternatively, the remaining period of 49 days which the appellants claim remained with the Central Government to issue the notification, should commence only from 19.02.2021 when the last representation was filed and if that be so, the notification issued by the Central Government would also be within time - In this view of the matter, the appellants are not entitled to any interim relief.
In the present case, what is required to be examined is whether because of the provisions of section 6 of the 2020 Act relating to ‘Relaxation of the Time Limit under certain Indirect Tax Laws’, the time period stipulated under rule 18 for passing an order within three months from the date of submission of final findings by the designated authority, stood extended upto 31.12.2020 - A perusal of section 6 of the 2020 Act makes it clear that the time limit specified in, or prescribed or notified under the Tariff Act falling between 20.03.2020 to 29.09.2020 for issuance of any order by any authority shall stand extended upto 30.09.2020, which was subsequently extended 31.12.2020. It is no doubt true that the Tariff Act does not prescribe time limit for completion of any proceeding or issuance of any order, but time limit has been prescribed under the 1995, Anti-Dumping Rules notified under the Tariff Act.
Thus, it is not possible to grant the interim relief prayed for by the appellants. The application filed for grant of interim relief is, therefore, rejected.
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2021 (11) TMI 1160 - ITAT CHENNAI
Quantum of Investment in house Property for Computation of Exemption u/s 54F - adopting deemed sale consideration as per provisions of section 50C - As submitted when the assessee has objected for adopting deemed sale consideration, as per provisions of section 50C the AO ought to have referred matter to the Departmental Valuation Officer and further adopt value as determined by the DVO - HELD THAT:- From plain reading of sub-section (1) & (2) of section 50C, it is very clear that the AO is bound to adopt fair market value, if there is difference between agreed consideration and guideline value of the property.
Before adopting deemed consideration, it is bounden duty of the AO to refer valuation to the DVO, in case the assessee filed objection for adopting deemed consideration. In this case, there is a difference between agreed consideration as per sale deed and market value of the property as per guideline value.
Also an admitted fact that the assessee has filed her objections before the AO for adopting guideline value of the property. It is also an admitted fact that the AO had referred valuation to the DVO. But, fact remains that before the DVO determines value of the property, the AO has completed assessment by adopting deemed sale consideration as per provisions of section 50C - AO has completely erred in adopting deemed sale consideration, as per provisions of section 50C when he himself referred valuation of property to the DVO.
Computation of exemption u/s.54F - As many expenditure in construction activity is incurred on day to day basis for which the assessee’s cannot keep bills and supporting vouchers. Therefore, for this reason genuine expenditure incurred for construction of building cannot be rejected.
It is a well settled principles of law by the decision of various High Courts, including case of C.Aryama Sundaram [2018 (8) TMI 864 - MADRAS HIGH COURT] that construction may commence before date of sale of asset, but should be completed on or before period of three years from the date of sale of original asset. Therefore, we are of the considered view that the Assessing Officer has erred in not considering amount spent towards construction of building prior to the date of sale of original asset.
Adoption of deemed consideration for the purpose of exemption u/s.54 - The deeming fiction provided for computing full value of consideration as a result of transfer of property as per provisions of section 50C of the Act is only applicable for determining full value of consideration as defined u/s.48 of the Act and thus, for the purpose of computing exemption u/s.54F of the Act, deeming fiction provided u/s.50C cannot be enlarged because, one cannot expect a person to perform impossible things, as when the assessee receives a particular amount from transfer of property, he cannot be expected to reinvest amount over and above consideration received for transfer of property. AO has erred in adopting deemed consideration for the purpose of computation of exemption u/s.54F.
Thus we set aside order passed by learned CIT(A) and restore the issue to file of the Assessing Officer and direct him to recompute long term capital gain by adopting market value of the property determined by the DVO and also by considering amount invested by the assessee for construction of new house property in light of our directions.
Appeal filed by the assessee is treated as allowed for statistical purposes.
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2021 (11) TMI 1159 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHI.
Rejection of Resolution Plan - Appellant submits that the Appellant has paid the full consideration of the 41 flats, therefore, he became the owner of the flats - HELD THAT:- At the stage when the application was filed by the Appellant no order could have been passed in his favour as prayed for under the Application - there are no ground to entertain this Appeal.
Appeal dismissed.
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2021 (11) TMI 1158 - BOMBAY HIGH COURT
Refund claim - adjustment of refund amount against the demand that it has against Petitioner - No intimation u/s 245 of the Act was given before making any adjustment - HELD THAT:- As per this notice dated 01/01/2021 and reminder dated 17/01/2021, it does not relate to any of the 15 refunds mentioned by Petitioner in the Petition. These notices issued by Respondent pertain to Kochi Refineries Limited before Kochi Refineries Limited was merged with Petitioner. Even the outstanding demand table annexed to the said notice dated 01/01/2021 does not pertain to any of the 15 refunds to be given to Petitioner as stated in the Petition. Therefore, our answer to Issue No.(i) is in negative, the notice as required under Section 245 of the Act has not been given.
Effect of failure to give such notice, it is settled law that non-giving of intimation in writing prior to setting off of the amount payable against the amount to be refunded is fatal. This Court, in Jet Privilege Private Limited [2021 (8) TMI 593 - BOMBAY HIGH COURT] has held that the requirement of prior intimation under Section 245 of the Act was a mandatory requirement and failure to comply with this mandatory requirement of prior intimation would make the entire adjustment as wholly illegal and therefore Respondents could not have made the adjustment as they wanted to.
Thus answering Issue Petitioner will be entitled to the refund of the entire amount together with accumulated interest, if any, in accordance with law. This refund shall be given within 6 weeks from today.
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2021 (11) TMI 1157 - KERALA HIGH COURT
Levy late filing fee u/s 234E - Fee for default in furnishing statements/ not filing the statement of tax deduction at source - Intimation u/s 200A - as argued till 01.06.2015 petitioner cannot be mulcted with any liability to pay late fee for non filing of any statement of tax deduction at source - HELD THAT:- After considering the statutory provisions and the implications of the amendment brought in to the Act, it was held that the amendment would take effect only with effect from 1st June, 2015 and is thus prospective in nature. It is submitted that the aforesaid judgment has become final and is binding upon the authorities.
The demand for the period from 2011-12 to 2015-16 is bereft of authority and cannot be legally sustainable. Thus quash notice to the extent it demands fee under section 234E for the period from 2011-12 till 01.06.2015. WP allowed.
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2021 (11) TMI 1156 - CALCUTTA HIGH COURT
Consecutive reopening assessment proceedings - second notice under the same section in respect of the same assessment year - non-application of mind - HELD THAT:- As second notice under the same section in respect of the same assessment year is totally in non-application of mind and such action on the part of the assessing officer concerned has caused harassment to the petitioner and created the scope of litigation and petitioner had to bear unnecessary cost of litigation and at the same time department has also to incur cost of unnecessary litigation from public exchequer for defending litigation arose due to non-application of mind by the assessing officer concerned.
Considering all there is no need of keeping the writ petition pending or calling for any affidavit since there is no scope to contradict the allegation of the petitioner as appears from records. The impugned notice u/s 148 of the Act is accordingly set aside. Decided in favour of assessee.
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2021 (11) TMI 1155 - ITAT BANGALORE
Disallowance of depreciation on assets under finance lease - HELD THAT:- As decided in own case [2019 (6) TMI 660 - ITAT BANGALORE] we set aside the issue to the file of the AO for fresh adjudication in accordance with law. The assessee is directed to produce copies of those agreements which the AO may call for. The AO shall examine these agreements and if the terms & conditions mentioned in these agreements are similar to the terms and conditions mentioned in the agreements considered by the Hon’ble Supreme Court in the case of ICDS Ltd [2013 (1) TMI 344 - SUPREME COURT] and if there are no material variations in the contracts, then depreciation has to be granted to the assessee as claimed. Thus we are inclined to remit the issue to the file of Assessing Officer for fresh decision with similar directions.
Not allowing set-off of brought forward depreciation loss - HELD THAT: AO has passed the Order giving effect to the Tribunal Order for the AYs 2008-09 [2014 (12) TMI 890 - ITAT BANGALORE] wherein the AO has provided carry forward of cumulative losses. Further the same has also been utilized against the total income in the draft OGE to Tribunal order passed for the AYs 2011-12 [2019 (6) TMI 660 - ITAT BANGALORE] In view of the above, the assessee is eligible as per the Order giving effect passed for earlier years to claim the set off of brought forward depreciation loss from prior years. Accordingly the AO is directed to allow the brought forward depreciation loss.
TP Adjustment - payment of fees for administrative support services - as submitted bundled approach for benchmarking should be accepted - HELD THAT:- This issue came up for consideration in assessee’s own case in AY 2015-16 [2021 (4) TMI 1361 - ITAT BANGALORE] we hold that payment of administrative and marketing support services is part of the operating cost, no separate adjustment is warranted. This ground of the assessee is partly allowed.
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2021 (11) TMI 1154 - ITAT BANGALORE
TP Adjustment - comparable selection - Assessee seeks exclusion of three comparable viz., Larsen & Toubro Infotech Ltd., Persistent Systems Ltd., and Tech Mahindra Limited - HELD THAT:- As relying on M/S. METRICSTREAM INFOTECH (INDIA) PVT. LTD. case [2019 (2) TMI 1731 - ITAT BANGALORE] we direct exclusion of the 3 comparable companies set out in Grd.No.9 (a) of the Assessee’s appeal.
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